A relatively new section of the Criminal Code makes it too easy to label certain serial offenders as “dangerous offenders” and infringes upon the principles of fundamental justice under the Charter, an Ontario judge has ruled in a precedent-setting case.

Typically, when prosecutors want to designate someone a dangerous offender — a label that carries the possibility of an indefinite prison sentence — they have to call on the opinion of experts, such as forensic psychiatrists, and prove beyond a reasonable doubt that the offender is dangerous.

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But in 2008, the Tackling Violent Crime Act streamlined the process for certain serial offenders. If someone was convicted at least three times of certain serious or violent offences, he was automatically presumed to be dangerous and the burden fell on the defence to prove otherwise.

This presumption and the reverse onus of proof, wrote Ontario Superior Court Justice Alan Bryant on Sept. 13, is a fundamental change in the dangerous offender process and a “significant” infringement of Section 7 of the Charter.

The ruling stemmed from the case of Roland Hill, a London, Ont., man who pleaded guilty in 2010 to choking and sexually assaulting a woman.

Hill had previously been convicted in 2000 of sexual assault and in 2004 of assault causing bodily harm. Each of those previous cases had resulted in sentences of at least two years in prison.

Crown lawyers argued that Hill met the dangerous offender criteria spelled out under Section 753 (1.1) of the Criminal Code.

They said the streamlined dangerous-offender designation process applied only to a “small class of individuals who have been proven to be very dangerous in the community.”

But the judge did not accept the argument.

The burden shouldn’t be shifted to the person whose liberty is at stake

“I do not accept the Crown counsel’s submission that there is a pressing need to streamline the process for labelling a small class of individuals as dangerous offenders,” he wrote.

“A breach of an individual’s (Section 7) rights cannot be justified or condoned in a free and democratic society because the class of affected individuals is small.”

The judge noted that between 1978 and 2005, just under 400 people had been designated as dangerous offenders.

The judge also cited the testimony of forensic psychiatrist, Philip Klassen, who evaluated Hill.

The expert was asked whether he could offer an opinion about whether Hill was a dangerous offender based solely on the knowledge of his previous convictions.

“I would decline to do it,” Klassen replied.

But even though the judge found the law’s presumption that certain serial offenders are dangerous to be a violation of the Charter, he still concluded based on the Crown’s evidence that Hill was a dangerous offender.

Hill is due to be sentenced in October.

Still, Hill’s defence lawyer, Peter Behr, said Tuesday the ruling is significant because it upholds the concept that when someone has been found guilty, aggravating facts that could lead to a harsher punishment still need to be proven by the Crown beyond a reasonable doubt.

“The prosecution should have the burden,” Behr said. “The burden shouldn’t be shifted to the person whose liberty is at stake.”

A spokesman for Ontario’s ministry of the attorney general said Tuesday that the judge’s ruling applies only to a narrow section of the law and that the “dangerous offender regime in the Criminal Code is not otherwise affected by this ruling.”